Perlmutter v. Reed Elsevier, Inc. Doc.

15
Case 1:07-cv-01762-GET Document 15 Filed 10/01/2007 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ANDREW J. PERLMUTTER, }
}
Plaintiff, }
} Case No. 1:07-CV-1762-GET
v. }
}
REED ELSEVIER, INC. D/B/A }
LEXISNEXIS, }
}
Defendant. }
}

DEFENDANT’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S

EXPEDITED MOTION FOR A PROTECTIVE ORDER

Plaintiff’s Expedited Motion for a Protective Order should be denied

because it is nothing more than an attempt to delay Defendant’s discovery, and

Plaintiff failed to propound any facts constituting “good cause” for a protective

order. Moreover, Plaintiff’s motion was filed even though Defendant expressed a

willingness to resolve the parties’ discovery dispute without the Court’s

intervention. Accordingly, Defendant requests that the Court deny Plaintiff’s

motion and award Defendant its reasonable attorneys’ fees incurred in responding

to Plaintiff’s motion.

Dockets.Justia.com
 Case 1:07-cv-01762-GET Document 15 Filed 10/01/2007 Page 2 of 12

BACKGROUND FACTS

This is a breach of contract case in which Plaintiff alleges Defendant failed

to pay Plaintiff severance and bonus pay. Discovery began on September 4, 2007.

Since September 4, Defendant’s counsel has had several telephone

conversations with Plaintiff’s counsel to attempt to schedule Plaintiff’s deposition.

Unfortunately, Plaintiff would only make himself available on Fridays in both

September and October. Specifically, Plaintiff’s counsel told Defendant’s counsel

that Plaintiff was only available on September 21 and 28 and October 5 and 12.

After receiving these dates, Defendant’s counsel asked whether Plaintiff was

available on any non-Friday in October. (See Exhibit 1, ¶¶ 3-4).

On September 18, 2007, Plaintiff’s counsel informed Defendant’s counsel

that November 5, 2007 was the first non-Friday that Plaintiff was available, and

that Plaintiff was also available on Friday, November 2, 2007. Defendant’s

counsel informed Plaintiff’s counsel that delaying Plaintiff’s deposition until

November was unacceptable and reminded Plaintiff’s counsel that, as a litigant,

Plaintiff must expect some inconvenience related to the litigation. Defendant’s

counsel then asked Plaintiff’s counsel to consult with her client again regarding his

availability in October. (See Exhibit 1, ¶¶ 5-6).

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In a subsequent phone call that same day, Plaintiff’s counsel reiterated that

November 5 was the first non-Friday Plaintiff would agree to be deposed. She also

stated, for the first time, that Plaintiff was planning on serving discovery requests

and that Plaintiff wanted to review Defendant’s discovery requests and production

of documents prior to his deposition. (See Exhibit 1, ¶ 7).

In response, Defendant’s counsel told Plaintiff’s counsel that they could not

control the order of discovery and that Defendant had the right to depose Plaintiff

without first producing documents. Defendant’s counsel then stated that he would

see if something could be arranged to take Plaintiff’s deposition on October 5 or 12

as these were dates Plaintiff had said he was available. Accordingly, Defendant’s

counsel told Plaintiff’s counsel to inform her client to keep October 5 and 12 as

well as November 5 open for his deposition. (See Exhibit 1, ¶ 8). Later that day,

Plaintiff served Defendant with interrogatories and requests for production.

One week later on September 25, Defendant’s counsel confirmed by

telephone that Defendant would depose Plaintiff on October 5. In a sudden about

face, Plaintiff’s counsel stated that they would refuse to produce Plaintiff for his

deposition insisting that Defendant first produce documents to Plaintiff. Citing

Federal Rule of Civil Procedure 26(d), Defendant’s counsel again stated that

Plaintiff could not control the order of discovery and that he would notice

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Plaintiff’s deposition for October 5, 2007. Jaclyn Platten, Plaintiff’s co-counsel,

never informed Defendant’s counsel that John Monroe, Plaintiff’s lead counsel,

was unavailable on October 5. In fact, Mr. Monroe’s availability was never

brought up as an issue for any of the deposition dates. 1 (See Exhibit 1, ¶¶ 9-10).

Later that day Plaintiff’s counsel sent a letter to Defendant’s counsel stating,

for the first time, that Mr. Monroe was unavailable on October 5. Plaintiff’s

counsel’s letter reiterated that Plaintiff’s counsel would refuse to make Plaintiff

available for deposition until Defendant responded to Plaintiff’s Request for

Production. (See Exhibit 2).

On September 26, 2007, Defendant’s counsel responded by email reasserting

Defendant’s right to depose Plaintiff prior to the deadline to respond to Plaintiff’s

discovery requests. Defendant also asserted that the Court’s involvement was not

yet necessary because it was willing to reschedule Plaintiff’s deposition on October

12 or 19 if Plaintiff truly could not be deposed on October 5. (See Exhibit 3).

Despite Defendant’s offer, Plaintiff filed the expedited motion for protective order.

ARGUMENT AND CITATION OF AUTHORITY

This Motion must be denied because it is an improper effort by Plaintiff to

dictate the sequence of discovery. The Federal Rules of Civil Procedure provide
1
Plaintiff is represented by a large labor and employment law firm, which should have some
other attorney available to defend the deposition.

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that “methods of discovery may be used in any sequence, and the fact that a party

is conducting discovery, whether by deposition or otherwise, does not operate to

delay any other party’s discovery.” Fed. R. Civ. P. 26(d) (emphasis added).

Plaintiff’s motion must also be denied because Plaintiff has failed to provide

“good cause” for a protective order under Rule 26(c). The burden of establishing

“good cause” for the imposition of a protective order lies with the moving party,

which Plaintiff clearly has failed to establish. Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1313 (11th Cir. 2001); United States v.

Garrett, 571 F.2d 1323, n.3 (5th Cir. 1978).

To establish “good cause,” the moving party must make “a particular and

specific demonstration of fact as distinguished from stereotyped and conclusory

statements.” Garrett, 571 F.2d at n.3 (citing General Dynamics Corp. v. Selb Mfg.

Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert denied, 414 U.S. 1162 (1974)).

The fact that Defendant’s discovery responses are due after Plaintiff’s

scheduled deposition date does not constitute sufficient good cause to warrant a

protective order under Rule 26(c). Moss v. Blue Cross and Blue Shield of Kansas,

Inc., 2007 U.S. Dist. LEXIS 36419, at *5 (D. Kansas Jan. 17, 2007); Teletel, Inc.

v. Tel-Tel US Corp., 2000 U.S. Dist. LEXIS 13273, at *4-5 (S.D.N.Y. Sept. 15,

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2000); Hogan v. DC Comics, 1997 U.S. Dist. LEXIS 13799, at *7-8 (N.D.N.Y.

Sept. 9, 1997).

In Teletel, the plaintiff would not provide a date for its deposition and

sought an extension for the deadline to conduct depositions because it had not

received documents from one of the defendants. The court denied the plaintiff’s

request because “it was unnecessary for plaintiff’s principals to review defendant’s

documents in order to testify to their own knowledge of the facts of the case.”

Teletel, 2000 U.S. Dist. LEXIS 13273 at *3-4 (citing Hogan, supra). See also

Convermat Corp. v. St. Paul Fire and Marine Ins. Co., 2007 U.S. Dist. LEXIS

69107 (E.D.N.Y. Sept. 18, 2007) (granting defendant’s motion to compel the

plaintiff to produce a corporate executive for deposition despite plaintiff’s

argument that it will suffer prejudice if required to give testimony without first

having the opportunity to review responses to its discovery demands).

Likewise, in Hogan, the plaintiffs objected to a deposition notice and served

a first request for the production of documents. The plaintiffs argued that it “would

be unfair for [one of the plaintiffs] to be deposed without the benefit of reviewing

all of defendant’s documents.” The court rejected this argument because it saw no

reason why the plaintiffs should have the benefit of the defendant’s internal

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documents prior to the deposition. Hogan, 1997 U.S. Dist. LEXIS 13799 at *20.

Indeed, the Court found that providing the plaintiff with the “defendants’ internal

documents would provide [the plaintiff] the opportunity to tailor his testimony

accordingly in order to bolster his claim.” 2 Id. at *21.

In Moss, the defendants wanted to take plaintiff’s deposition in early

January, but the plaintiff preferred February so the parties could first complete

written discovery. The plaintiff argued that written discovery could possibly avoid

additional deposition costs. The court specifically found “that plaintiff’s desire to

take plaintiff’s deposition only after the conclusion of written discovery does not

constitute good cause.” Moss, 2007 U.S. Dist. LEXIS 36419 at *6. The court

further noted that “a party may not withhold discovery solely because it has not

obtained to its satisfaction other discovery.” Id. (punctuation and citations

omitted). See also Meisch v. Fifth Transoceanic Shipping Co., 1994 U.S. Dist.

LEXIS 14995, at *2 (S.D.N.Y. October 21, 1994) (denying plaintiff’s motion to

compel discovery from defendants prior to plaintiff’s deposition because of

2
The court did require that the defendants produce prior to anyone’s deposition the plaintiff’s
own notes and memoranda and stenographic transcripts of any conversations or meetings
between plaintiffs and defendants that might be in defendants’ possession. Id. at *21. However,
at this time, LexisNexis is unaware of any notes created by Plaintiff or stenographic transcripts
of any conversations between Plaintiff and Defendant in its possession relevant to the litigation.
Moreover, even if they existed, Defendant submits that Plaintiff has not established good cause
for the production of those or any other documents prior to his deposition. Accordingly, Plaintiff
is not entitled to any documents prior to his deposition.

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plaintiff counsel’s unjustified insistence on receipt of certain discovery materials

before he would allow the plaintiff to be deposed).

Here, Plaintiff similarly cannot establish good cause for a protective order.

First, Plaintiff has not set forth “a particular and specific demonstration of fact as

distinguished from stereotyped and conclusory statements” as to why he must

review the requested documents prior to his deposition. 3 Second, Defendant will

be prejudiced if required to first produce documents to Plaintiff because Plaintiff

would be given an opportunity tailor his testimony to bolster his claim based on

those documents. Defendant has the right to determine what Plaintiff saw, heard, or

did and what he thinks before reviewing all potentially relevant documentary

evidence. Teletel, 2000 U.S. Dist. LEXIS 13273 at *4-5l (citing Hogan, supra; Hall

v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993) (“The underlying

purpose of a deposition is to find out what a witness saw, heard, or did—what the

witness thinks.”)). Moreover, Plaintiff will not be prejudiced because Defendant

will provide Plaintiff reasonable time to review any document used during his

deposition prior to answering any questions regarding that document. Accordingly,

Plaintiff’s motion for protective order must be denied.

3
Although no documents were produced in connection with the parties’ mandatory Initial
Disclosures, the Local Rules do not require the production of documents.

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Plaintiff’s cases cited in support of his motion are easily distinguishable. In

Halcon International, Inc. v. Snam Progetti, S.p.A., 1968 U.S. Dist. LEXIS 12833,

at *12 (S.D.N.Y. Dec. 27, 1968), the defendants requested that their depositions be

delayed until after they produced all of their documents to plaintiff to avoid the

need to depose the defendants more than once. As such, the defendants did not ask

the court to compel the plaintiff to produce documents prior to the defendants’

depositions. 4

In Gutter v. E.I. du Pont de Nemours and Company, 1999 U.S. Dist. LEXIS

22725, at *4-5 (S.D. Fl. Feb. 16, 1999), the “fairness” documents were to be

produced by the deponent, not the party taking the deposition. Further, neither

party requested that a deposition be delayed so a deponent could request

documents from the deposing party.

Similarly, in Sparks Tune-Up Centers, Inc. v. Strong, 175 B.R. 230, 232,

1994 U.S. Dist. LEXIS 13945, at *6 (N.D. Ill. 1994), the court ordered the

defendants to produce documents to the plaintiff before the defendants’

depositions. As such, the defendants in Sparks Tune-Up were not objecting to their

deposition on the basis that they had not yet had an opportunity to request

4
Moreover, Halcon predates Fed. R. Civ. P. 26(d), which was added in the 1970 amendments to
the Federal Rules.

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documents from the plaintiff. Accordingly, these cases do not support Plaintiff’s

request for a protective order, and the motion should be denied.

Further, Plaintiff’s counsel sudden unavailability is also suspect and not

sufficient grounds for good cause. Not until after Defendant confirmed October 5,

2007, for Plaintiff’s deposition did Plaintiff’s lead counsel assert that he was

unavailable for the deposition. Moreover, it appears that co-counsel is available on

October 5, 2007, and can attend Plaintiff’s deposition. Accordingly, Plaintiff

cannot establish good cause for a protective order as required by Fed. R. Civ. P.

26(c). Therefore, Plaintiff’s motion must be denied.

Moreover, Plaintiff failed to satisfy Fed. R. Civ. P. 26(c)’s requirement that

a party confer in good faith to resolve the dispute without court action. Indeed,

before Plaintiff filed his motion, Defendant’s counsel wrote expressing a

willingness to resolve the parties’ discovery dispute without the Court’s

intervention. Despite Defendant’s willingness, Plaintiff filed the motion for a

protective order without even responding to Defendant’s correspondence. As

Plaintiff failed to confer in good faith with Defendant to resolve this dispute, the

motion should be denied.

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CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court

deny Plaintiff’s expedited motion for a protective order, award Defendant its

reasonable attorneys’ fees and costs reasonably incurred responding to Plaintiff’s

motion, and award any other relief the Court deems just and proper.

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this brief complies with the font and

size requirements (Times New Roman, 14 pt) pursuant to Local Rule 7.1(D).

Respectfully submitted this 1st day of October, 2007.

/s/ Brennan W. Bolt

Brennan W. Bolt
Georgia Bar No. 066170
bbolt@mcguirewoods.com
Mark L. Keenan
Georgia Bar No. 406830
mkeenan@mcguirewoods.com

McGuireWoods LLP
1170 Peachtree Street, N.E.
Suite 2100
Atlanta, Georgia 30303
404.443.5740 (telephone)
404.443.5756 (facsimile)

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 Case 1:07-cv-01762-GET Document 15 Filed 10/01/2007 Page 12 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ANDREW J. PERLMUTTER, }
}
Plaintiff, }
} Case No. 1:07-CV-1762-GET
v. }
}
REED ELSEVIER, INC. D/B/A }
LEXISNEXIS, }
}
Defendant. }
}

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed Defendant’s Memorandum In

Opposition To Plaintiff’s Expedited Motion For A Protective Order with the

Clerk of Court using the CM/ECF system which will automatically send email

notification of such filing to the following attorneys of record:

John L. Monroe, Jr.

Jaclyn C. Platten
Ford & Harrison LLP
1275 Peachtree Street, NE
Suite 600
Atlanta, GA 30309

This 1st day of October, 2007.

/s/ Brennan W. Bolt

Brennan W. Bolt